Here, the proposition is to make two states out of one. Each one, of course, must have a legislature, and the Constitution requires the consent of both legislatures, before the thing can be done. Now, it is said that the legislature of Virginia (Old Virginia) has consented; but it is not pretended that the legislature of West Virginia has consented- nor that there is, in fact, any such legislature to give consent.
It is a very grave and important thing to cut up and dismember one of the original States of this nation-for a time, in our national youth, the greatest of all-and if we must do it, it behooves us to know that we are acting within the letter of the Constitution, and with a decent respect for the forms of law. (Author’s italics).
So much for the letter of the law. Let us now examine a little into the sense and spirit of it. When the rebellion broke out, all the State authorities of Virginia joined it, and made organized and official, as well as individual, insurrection against the national government, defying its power, and, in order the more effectually to resist it, inviting invasion from States further South. Still a remnant, chiefly in the northwestern counties, remained faithful; and the duty rested upon this government to protect that remnant; to repel that invasion and suppress that insurrection; and thereby to restore Virginia, as she was before the insurrection, to her proper place in the Union.
That was and is the plain constitutional duty of this government; and all that this government has yet done, by legislation, by executive action, or by actual war, has been done with that avowed and only object. When all the governmental officers of the state of Virginia acting in organic form, had renounced their allegiance to the Constitution, and had risen, in armed revolt against the nation, carrying along with them, into flagrant war, a great majority of the people of the State, this government found itself in a strange and anomalous condition. It was charged with duties which could be neither denied nor evaded; and constrained to the use of powers, which undoubtedly exist in contemplation of law, and yet the modes of their action had not been prescribed, only because the necessity to put those powers into practical exercise had not been foreseen.
In this state of things, we took the only course which lay open before us - a course of prudence, of moderation, and of conformity to the principles and objects of the Constitution. It was our sacred duty to suppress the insurrection, to repel the invasion, to put down the official treason in Virginia, which had perverted all the organic powers of the state, into active hostility against the nation. And in performing this duty, we could do no less than recognize all of Virginia which remained faithful to the Constitution, and which demanded the protection and support of the national government.
In this view, and only in this, we advised and consented to the organization of a new government for Virginia, seated, for the present, in the northwest, where alone it could act in safety. Those who organized that government were a small minority, but they were all that remained to us and to the Constitution. And we all know (certainly I did) that such a government could not be organized by such a people, at such a time, and under such circumstances, in exact conformity to all the minute requirements and particulars of the Virginia Constitution. But, for that reason-for the crimes of a comparatively few individuals which render an exact compliance with forms impossible, shall a nation be allowed to perish, a State be blotted from the map of the world? No, God forbid. The substance must not be sacrificed to the forms. (Author’s italics).
Our first great Constitutional duty is to save the nation, and the States: and, if possible, we must save them according to law. But if the two duties conflict, still the greater must be performed, and the lesser must yield, even as a conflicting act of Congress must yield to the Constitution. We all know - everybody knows - that the government of Virginia recognized by Congress and the President, is a government of necessity, formed by that power which lies dormant in every person, which though known and recognized, is never regulated by law, because its exact uses and the occasions for its use, cannot be foreknown, and it is called into exercise by the great emergency which, overturning the regular government, necessitates its action, without waiting for the details and forms which all regular governments have. It is intended only to counteract the treacherous perversion of the ordained powers of the State, and stands only as a political nucleus around which the shattered elements of the old commonwealth may meet and combine, in all its original proportions, and be restored to its legitimate place in the Union. (Author’s italics).
It is a provisional government, proper and necessary for the legitimate object for which it was made and recognized. That object was not to divide and destroy the State, but to rehabilitate and restore it. That government of Virginia, so formed and so recognized, does not and never did, in fact, represent and govern, more than a small fraction of the State - perhaps a fourth part. And the legislature which pretends to give consent of Virginia to her own dismemberment, is, (as I am credibly informed) composed chiefly if not entirely of men who represent those forty-eight [sic] counties which constitute the new State of West Virginia. (Author’s italics).
The act of consent is less in the nature of a law than of a contract. It is a grant of power, an agreement to be divided. And who made the agreement, and with whom? The representatives of the forty-eight [sic] counties, with themselves! Is that fair dealing? Is that honest legislation? Is that a legitimate exercise of a constitutional power, by the legislature of Virginia?
It seems to me that it is mere abuse, nothing less than attempted secession, hardly veiled under the flimsy forms of law. Fortunately, however, even that flimsy veil foes not cover the substantial wrong. I think I have already shown that under either construction of the clause of the Constitution above cited, the forms of the Constitution have not been fulfilled. The bill was introduced and has been thus far pushed forward towards its completion, under the erroneous idea that it was in verbal and technical conformity to the Constitution, and therefore, and only therefore, that it could ever ripen into a binding law. (Author’s italics).
That was its only foundation; for I think that no reflecting man will seriously affirm that the legislature of Virginia, which, at Wheeling, on the 13th of May, 1862, gave its consent (not the consent of Virginia) to the dismemberment of the Old Commonwealth, was in truth and honesty, such legislature of Virginia as the Constitution speaks of - a legislature representing and governing the whole, and therefore honestly and lawfully speaking for the whole, in a matter which concerns the fundamental conditions of the State, and its organic law. (Author’s italics).
In proceeding to answer the second question - “Is the said act expedient?” - it becomes necessary to look into the bill itself. It is a strange composition, bearing upon its face, unmistakable marks of haste and in consideration. The preamble, after various recitals, gives the consent of Congress, “that the forty-eight [sic] counties (which may be formed into a separate and independent state).”
The first section declares “that the State of West Virginia be, and is hereby declared to be one of the United States of America, and admitted into the Union on an equal footing with the original States, in all respects whatever,” and allows three representatives, until the next general census. But this [is] immediately followed by a provision, “That this act shall not take effect until after the proclamation of the President of the United States hereinafter provided for.” Which proclamation, very possibly, may never happen, for there is no after-provision in the bill, making it the duty of the President to issue it.
Then follows a paragraph (which seems to be only a preamble to § 2) to the effect that “it being represented to Congress that, since the convention of the 26th of November, 1861, which framed the proposed Constitution for the said State of West Virginia, the people thereof have expressed a wish to change the seventh section of the eleventh article of said Constitution by striking out the same and inserting the following” - giving the exact form of what Congress chooses to have inserted in the State Constitution!
The bill does not inform us when, how, or by whom it was “represented to Congress,” that the People wished to change their Constitution so recently made by their convention, and ratified by their own votes, as stated with exact particularity in the preamble.
If the people of West Virginia had a right to call a convention and make a Constitution for themselves, what is to hinder them from amending the one or making another by the same means and without waiting for Congress to instruct them what to do and how to do it? It looks hardly. However pure the motive, it lays Congress open to the suspicion of assuming unconstitutional powers, by dictating to a State, in a matter so important and so enduring as its Constitution.
And the second section brings no relief, but strengthens the suspicion and magnifies the evil. “Therefore, Sec. 2. Be it further enacted, That whenever the people of West Virginia shall, through their said convention, and by a vote,” etc. “make and ratify the change aforesaid, and properly certify” etc. “it shall be lawful for the President of the United States to issue his proclamation stating the fact, and thereupon this act shall take effect and be in . . . force from and after sixty days from the date of said proclamation.”
In view of this section, it is manifest that the very existence of the Act, even after you have signed it, is made to depend upon the implicit obedience of the people of West Virginia. They must “make and ratify the change aforesaid,” and in the precise manner prescribed. They cannot choose new agents to amend their own constitution. They must do it “through their said convention”- the same which sat at Wheeling on the 26th of November 1861.
None other can be trusted! Perhaps that convention is no longer in existence. It was called for a particular purpose, and having done its work, and the people having ratified it-perhaps the convention is functus officio, dead and gone. Surely, it was not intended as a permanent institution, to last through all times. Yet that seems to be the idea of the bill, for it fixes no limit of time-whenever the people shall do it, through their said convention. Again, when all this is done, as ordered, still, the Act may fail and the new State perish in the birth, for want of a proclamation. The bill declares that “it shall be lawful for the President to issue his proclamation;” but it is not his duty to do whatever may be lawfully done. By Act of Congress it is lawful for the President, by proclamation, to close all the Southern ports, but he has not found it expedient to exercise the power.
I need not trouble you with many remarks upon the very awkward shape and inconvenient geographical relations of the new State, and the still greater awkwardness and inconvenience in which the old state would be left, by the proposed division. Such a division, if now made by force of untoward circumstances, could not long stand. Its evils would not be long endured. I consider this proceeding revolutionary, all the more wrong, because it is needlessly begun at a moment when we are strained to the uttermost, in efforts to prevent a far greater revolution. If successful, it will be at once an example and fit instrument for tearing into pieces the regions further south, and making out of the fragments, a multitude of feeble communities. And, for what good end? We may thereby stimulate the transient passions and prejudices of men in particular localities, and gratify the personal ambition and interest of a few leaders in those sections. We may disjoint the fabric of our national government, and destroy the balance of power in Congress, by a flood of senators representing a new brood of fragmentary States. (Author’s italics).
And now, Sir, I give it as my opinion that the bill in question is unconstitutional; and also, by its own intrinsic demerits, highly inexpedient. And I persuade myself that Congress, upon maturer [sic] thought, will be glad to be relieved by a veto, from the evil consequences of such improvident legislation. (Author’s italics).
All which is, most respectfully submitted, by your obedient servant,
Edward W. Bates
Attorney General.
3. Letter from Salmon P. Chase to President Abraham Lincoln, Washington, D.C., December 29, 1862.
Treasury Department
December 29, 1862
Sir,
My most thoughtful attention has been given to the questions which you have proposed to me as the Head of one of the Departments, touching the Act of Congress admitting the State of West Virginia into the Union.
The questions proposed are two:
1. Is the Act constitutional? 2. Is the Act expedient?
In my judgement [sic] the Act is constitutional. In the Convention which Framed the Constitution, the formation of new States was much considered. Some of the ablest men in the Convention, including all or nearly all the delegates from Maryland, Delaware and New Jersey, insisted that Congress should have power to form new States, within the limits of existing States, without the consent of the latter. All agreed that Congress should have the power, with that consent. The result of deliberation was the grant to Congress of a general power to admit new States; with a limit on its exercise in respect to States formed within the jurisdiction of old States or parts of such, to cases of consent by the legislatures of the States concerned.
The power of Congress to admit the State of West Virginia, formed within the existing State of Virginia, is clear, if the consent of the legislature of the State of Virginia has been given. That this consent has been given cannot be denied, unless the whole action of the Executive and Legislative branches of the Federal Government for the last eighteen months has been mistaken, and is now reversed. (Author’s italics).
In April, 1861, a Convention of citizens of Virginia assumed to pass an Ordinance of Secession; called in rebel troops; and made common cause with the insurrection which had broken out against the Government of the United States. Most of the persons exercising the functions of State government in Virginia joined the rebels, and refused to perform their duties to the Union they had sworn to support. They thus abdicated their powers of government in respect to the United States.
But a large portion of the people, a number of members of the Legislature, and some judicial officers, did not follow their treasonable example. Most of the members of the Legislature who remained faithful to their oaths, met at Wheeling and reconstituted the Government of Virginia, and elected Senators in Congress who now occupy their seats as such. Under this reconstituted Government, a Governor has been elected, who now exercises Executive authority throughout the State, except so far as is excluded by armed rebellion.
By repeated and most significant acts, the Government of the United States has recognized this Government of Virginia as the only legal and constitutional Government of the whole state. And, in my judgement [sic], no other course than this was open to the National Government. In every case of insurrection involving the persons exercising the powers of State Government, when a large body of the people remain faithful and that body, so far as the Union is concerned, must be taken to constitute the State.
It would have been as absurd as it would have been impolitic to deny the large loyal population of Virginia the powers of a State Government, because men whom they had clothed with Executive or Legislative or Judicial powers had betrayed their trusts and joined in rebellion against their country. It does not admit of doubt, therefore, as it seems to me that the Legislature which gave its consent to the formation and erection of the State of West Virginia was the true and only lawful Legislature of the State of Virginia. The Madison Papers clearly show that the consent of the Legislature of the original State was the only consent required to the erection and formation of a new State within its jurisdiction. (Author’s italics).
That consent having been given, the consent of the new State, if required, is proved by her application for admission. Nothing required by the Constitution to the formation and admission of West Virginia into the United States, is, therefore, wanting; and the Act of admission must necessarily be constitutional. Nor is this conclusion technical as some may think.
The Legislature of Virginia, it may be admitted, did not contain many members from the Eastern C
ounties. It contained, however, Representatives from all counties whose inhabitants were not either rebels themselves or dominated by greater numbers of rebels. It was the only Legislature of the State known to the Union. If its consent was not valid, no consent could be. If its consent was not valid, the Constitution as to the People of West Virginia has been so suspended by the rebellion that a most important right under it is utterly lost. It is safer, in my opinion to follow plain principles to plain conclusions than to turn aside from consequences clearly logical because not exactly agreeable to our views of expediency. (Author’s italics).
And this brings me to the second question. Is the Act of admission expedient? The Act is almost universally regarded as of vital importance to their welfare by the loyal people most immediately interested, and it has received the sanction of large majorities in both Houses of Congress. These facts afford strong presumptions of expediency. It is, moreover, well known that for many years, the people of West Virginia have desired separation on good and substantial grounds; nor do I perceive any good reason to believe that consent to such separation would now be withheld by a Legislature actually elected from all the Counties of the State and untouched by rebel sympathies.
However this may be, much-very much-is due to the desires and Convictions of the loyal people of West Virginia. To them, admission is an object of intense interest; and their conviction is strongly expressed that the veto of the Act and its consequent failure would result in the profound discouragement of all loyal men and the proportionate elation and joy of every sympathizer with rebellion. Nor is it to be forgotten that such a veto will be regarded by many as an abandonment of the views which have hitherto guided the action of the Government in relation to Virginia; will operate as a sort of disavowal of the loyal Government; and may be followed by its disorganization.
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